Court File and Parties

COURT FILE NO.: CR-13-90000654-0000 DATE: 2017-07-21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JOEL STEVENSON

Counsel: C. Otter, for the Crown T. Kirichenko and M. Osadet, for Joel Stevenson

HEARD: 21 June 2017

BEFORE: S.A.Q. Akhtar J.

Introduction

[1] After a three day trial, Joel Stevenson was found guilty of the offence of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Ms. Otter, for the Crown, requests a sentence of seven years imprisonment. Mr. Kirichenko and Ms. Osadet, on behalf of Mr. Stevenson, submit that a conditional sentence would be appropriate in this case given Mr. Stevenson’s aboriginal heritage and level of participation in the offence. Alternatively, they suggest a sentence of four years imprisonment with a substantial credit to be awarded for Mr. Stevenson’s pre-sentence bail conditions.

Factual Background

[2] On 16 April 2012, police conducted surveillance operations on Steven Graham in and around his residence of 500 Plains Road in Toronto. Mr. Graham was seen to transport items contained in white plastic bags to various locations and meet with an unknown male who had been waiting outside his home. When police searched Mr. Graham’s home, that same day, they found two kilogrammes of cocaine hidden under a disused children’s pool located in the backyard.

[3] Through intercepted communications, police became aware that during their surveillance of Mr. Graham on the evening of 16 April, he had been in constant communication with Mr. Stevenson, by phone and text. Mr. Graham continued to communicate with Mr. Stevenson even after his arrest on 16 April 2012. The conversations between the two men were relied upon by the Crown as its foundation for Mr. Stevenson’s knowledge and control of the drugs found at Mr. Graham’s residence and his culpability as a trafficker in cocaine.

[4] In concluding that the Crown had proven Mr. Stevenson’s guilt beyond a reasonable doubt, I made the following factual findings:

1. Both Mr. Stevenson and Mr. Graham were involved in a pre-planned venture to traffic cocaine.
2. Mr. Stevenson and Mr. Graham were equal partners in the venture.
3. During the course of the evening, Mr. Graham made several calls to Mr. Stevenson seeking advice after becoming aware that he was being followed by police.
4. Mr. Stevenson was active in providing assistance on the night in question, first by offering his home to divide and repackage the cocaine into smaller quantities for sale and later in suggesting methods by which Mr. Graham could dispose of the drug to avoid being caught by the police.

The Application of Gladue Principles

The Statutory Provision

[5] Sections 718, 718.1, and 718.2 of the Criminal Code outline the purposes and principles of sentencing, embedding into the sentencing process the principles of deterrence and denunciation; rehabilitation; proportionality; reparations; and the mandatory requirement that the court take into account the circumstances of the offender as well as the offence.

Critically, s. 718(2)(e) directs the court to consider alternatives to imprisonment with particular regard to Aboriginal offenders by stating:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[6] In R. v. Gladue, [1999] 1 S.C.R. 688, the Supreme Court of Canada reviewed the purpose of s. 718.(2), providing guidance on its implementation. The Court recognised that Parliament had legislated the provision to address the significant difficulties caused by the overrepresentation of aboriginal persons in the prison system. The section intended to alter the method by which sentencing judges arrived at the appropriate sentence for aboriginal offenders. At para. 80, the Court made clear that the sentencing of those offenders with an aboriginal heritage was a highly individualised process by stating:

As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances?

[7] In essence, a sentencing judge is obliged to consider (a) the unique systemic or background factors which may have played a part in bringing the offender within the criminal justice system; and (b) the appropriate method of sentencing given the offender’s aboriginal heritage: Gladue, at para. 93.

[8] If no alternative to incarceration exists, the length of imprisonment has to be carefully scrutinised. Whilst this might lead to an aboriginal offender receiving a lesser sentence than a non-aboriginal offender, s. 718.2(e) is not to be taken as a provision providing an automatic sentence reduction: Gladue, at para. 88. The Court emphasised that it could not be assumed that aboriginal peoples did not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation. At para. 79, the Court observed:

Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non‑aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.

[9] In R. v. Wells, 2000 SCC 10, the Court re-affirmed these principles but focused on the more narrow issue of whether, in the context of s. 718.2(e), a non-custodial sentence was reasonable where the paramount sentencing objectives were determined to be deterrence and denunciation. There, the offender had been convicted of sexual assault and, as in the case at bar, the defence asked the court to impose a conditional sentence. The Court found that such a sentence would not be “reasonable within the circumstances” within the meaning of s. 718.2(e). At paras. 40-42, Iacobucci J., writing for the court, explained:

However, the scope of s. 718.2(e), as it applies to all offenders, restricts the adoption of alternatives to incarceration to those sanctions that are “reasonable in the circumstances”. Again, as was expressly stated in Gladue, the Court in no way intended to suggest that as a general rule, the greatest weight is to be given to principles of restorative justice, and less weight accorded to goals such as denunciation and deterrence. Indeed, such a general rule would contradict the individual or case-by-case nature of the sentencing process, which proceeds on the basis of inquiring whether, given the particular facts of the offence, the offender, the victim and the community, the sentence is fit in the circumstances.

I should take this opportunity to stress that the guidelines as set out in Gladue, and reiterated in the present appeal, are not intended to provide a single test for a sentencing judge to apply in determining a reasonable sentence in the circumstances. Section 718.2(e) imposes an affirmative duty on the sentencing judge to take into account the surrounding circumstances of the offender, including the nature of the offence, the victims and the community.

Notwithstanding what may well be different approaches to sentencing as between aboriginal and non-aboriginal conceptions of sentencing, it is reasonable to assume that for some aboriginal offenders, and depending upon the nature of the offence, the goals of denunciation and deterrence are fundamentally relevant to the offender’s community. As held in Gladue, at para. 79, to the extent that generalizations may be made, the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accorded increasing significance. [Emphasis added]

[10] The comments - in both Gladue and Wells - led to the belief that in serious cases, the Gladue principles would be rendered inapplicable. The Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13 sought to clarify this misconception. Re-affirming the concepts and guidance set out in Gladue, Lebel J., writing for the majority, at para. 85, made clear “that sentencing judges have a duty to apply s. 718.2(e)” when using their discretion to impose a fit sentence [Emphasis in original]. At para. 87, he underlined the universal application of s. 718.2(e) in the following way:

The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.

[11] The Court also made clear that there was no evidentiary burden on an aboriginal offender to establish a link between their upbringing and the offence itself before s. 718.2(e) could be considered. At para 83, Lebel J. wrote that “it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex.”

[12] However, hearkening back to the need to evaluate the Gladue factors in the context of the offence, Lebel J. added:

Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [Emphasis added]

The Circumstances of the Offender

Mr. Stevenson’s Prior History

[13] Mr. Stevenson is 40 years of age. He is an aboriginal person as defined by s. 35 of the Constitution Act, a “Status Indian” under the Indian Act, R.S.C. 1985, 1-5, and a registered member of the Missanabie Cree First Nation. The Gladue report cites the Missanabie Vision Statement as one of leadership that is open, honest and trustworthy, and one which is both progressive and respects tradition.

[14] Mr. Stevenson is a father of two sons, Nathan aged 24, and Cree, aged seven, whose mother is Mr. Stevenson’s current partner. He has a half-brother, Jason, and three half siblings on his father’s side. Mr. Stevenson’s aboriginal heritage derives from his mother, Joanne, who was raised in Toronto. Mr. Stevenson’s grandmother, Carol, was taken from her parents as a child and forced to enter the Residential School system. This historical practice has been universally condemned and recognised as the cause of intergenerational harm throughout the aboriginal community. As the Gladue report makes clear, the Residential School programme affected not only those that attended the schools but their children, grandchildren, extended families, and their communities. The severity of the harm was acknowledged by the then Prime Minister, Stephen Harper, who, on 11 June 2008, told Parliament:

It was wrong to forcibly remove children from their homes… It was wrong to separate children from rich and vibrant cultures and traditions, but it created a void in many lives and communities… In separating children from their families, we undermined the ability of many to adequately parent their own children and sowed the seeds for generations to follow… The legacy of Indian Residential Schools has contributed to social problems that continue to exist in many communities today.

[15] There is no doubt that the Residential Schools programme had an effect on Mr. Stevenson’s family. His father, Joey, was an abusive husband who spent much of his time in prison. Mr. Stevenson, when interviewed, told the author of the Gladue report that he had witnessed regular physical abuse committed by his father towards his mother. Mr. Stevenson described his father as an “abuser, alcoholic, criminal.” In the report, he recounted how one particular beating left his mother with a broken jaw which needed to be wired for two months to allow it to heal. The parental fights would intensify with the consumption of alcohol and culminated with Mr. Stevenson’s father attempting to kill his wife and shooting her equally abusive boyfriend at their home.

[16] Mr. Stevenson was candid about the deterioration of his relationship with his mother, who had moved to British Columbia in 1986 taking both of her sons with her before sending them back to Ontario to live with their grandmother in Kingston. When Mr. Stevenson was around 11 or 12 years old, his grandmother ejected him from her home after he had argued with her boyfriend.

[17] Prior to that, at approximately three years of age, Mr. Stevenson had made regular trips to see his father in prison. On returning to Kingston he resumed those visits when his father was held in custody for the shooting at his mother’s home, described previously. Mr. Stevenson would surreptitiously provide his father with drugs hidden upon his person. At 18 years of age, Mr. Stevenson was arrested with his father on break and enter charges. Those charges were ultimately withdrawn after Mr. Stevenson represented himself at trial. Mr. Stevenson’s father died of brain cancer in 2014.

[18] The familial criminal history also involved his half-brother, Jason, who spent a substantial time in custody for committing robbery and firearms offences.

[19] At 15 years of age, Mr. Stevenson discovered that his then girlfriend, Sandy Sherbanowski, was pregnant with his child. His criminal activities saw him, like his half-brother and father, being held in custody for much of the duration of the pregnancy. His son, Nathan, was born four months after his release from prison. Mr. Stevenson’s freedom did not last long: he claims he was wrongly arrested for a crime committed by his half-brother and, once again, incarcerated. During that period, Jason and Sandy visited Mr. Stevenson telling him that they were getting married and leaving Ontario, with Nathan, to live with Mr. Stevenson’s mother. Nathan did not find out that Mr. Stevenson was his father until he was six and their relationship has only recently begun to develop.

[20] As is apparent, Mr. Stevenson had several spells in custody as a youth. This proved to be a most harrowing time for the young offender. His time at the Toronto West Detention Centre saw him repeatedly sexually assaulted and beaten by other inmates. He was regularly placed in “the hole” which in his mind was preferable to being on the range such were the nature of conditions at the institution. In the Gladue report, Mr. Stevenson described his tenure at the Toronto West as akin to being in “Gladiator School.”

[21] There were further stints in the Toronto Don Jail and the Guelph Reformatory. It was in the latter institution that he joined the “Native Sons” and immersed himself in Native culture, absorbing its cultural practices and learning the Seven Grandfather Teachings: Wisdom, Love, Respect, Bravery, Honesty, Humility, and Truth. These teachings are gifts “to help the people live a good life and respect the Creator, the earth and each other.”

Current History

[22] Mr. Stevenson had his youngest son, Cree, in 2009. The mother of his child, and Mr. Stevenson’s fiancé, Ashley Masotti, wrote a personal letter to the court acknowledging Mr. Stevenson’s addiction to drugs, caused by emotional issues triggered by the death of his aunt and uncle. Mr. Stevenson was arrested on the case at bar when Cree was two years old. Ms. Masotti, who had distanced Mr. Stevenson from their son because of his drug-related issues, enrolled at college to study addictions. According to Ms. Masotti, when Mr. Stevenson was released on bail with an ankle bracelet, “he was determined to change his life around our son and me.” Ms. Masotti insists that Mr. Stevenson is doing the “best he has ever been in his life.”

[23] Tragically, Ms. Masotti has recently developed a significant medical condition that would require costly medication. She concludes her letter by admitting that she and her son will suffer “emotionally, financially and spiritually” without Mr. Stevenson in their lives.

[24] The material filed by the defence also contains several letters of support from Mr. Stevensons’ employers, family, friends and First Nations’ council, indicating his community work and employment endeavours. His son, Nathan, is expecting his first child this July and Mr. Stevenson refers to his family as being his “medicine” in life.

Mr. Stevenson’s Prior Criminal Record

[25] Mr. Stevenson has a record dating back to 1991, where he appeared to be in constant trouble with the law. Between June 1991 and August 1994, he was found guilty of a number of dishonesty offences, assault, and breaches of court orders. Some of these convictions resulted in the imposition of “secure custody” under the former provisions of the Young Offenders Act.

[26] On 27 July 1995, he received his first adult conviction for the offence of causing bodily harm and received a sentence of 7 months imprisonment on top of 105 days of pre-sentence custody. His record from 1997 shows a renewed vigour for dishonesty offences and breaches of court orders. Significantly, there is only one drug conviction for simple possession of marihuana recorded on 4 May 2005.

What is the Appropriate Sentence?

The Range of Sentences

[27] Both sides have provided authorities setting out what they argue is the appropriate range of sentencing in Mr. Stevenson’s case.

[28] The Crown’s cases suggest a range of 5 to 8 years. In R. v. Muise, 2008 ONCA 665, for example, an offender who trafficked three kilogrammes of cocaine received 8 years after pleading guilty. In R. v. Majnoon, 2009 ONCA 876, a first time offender who pleaded guilty to trafficking “kilogram-level” shipments of cocaine on two occasions had his initial sentence of 2 years less one day increased to 4 years. The majority, however, remarked that a sentence between five and seven years would have been appropriate.

[29] In R. v. Nero, 2008 ONCA 622, the Crown appealed the sentence of an offender who had trafficked one kilogramme of cocaine on two separate occasions. Even though the offender had pleaded guilty and had an unrelated record, the court found the offence to be serious: the offender had committed the offences on bail and had a further kilogramme of cocaine on his person when arrested. The court found that the appropriate sentence would have been 8 years. However, given the offender had already been sentenced to an additional 4 years for theft, the court imposed a 5 year sentence for the trafficking offence.

[30] In R. v. McIntyre, 2016 ONCA 843, the offender, who was aboriginal and had no previous record, was sentenced to a period of approximately just under 8 years after being convicted of trafficking one kilogramme of cocaine. The court reduced that sentence to 5 years after considering a Gladue report which had not been available at the sentencing hearing.

[31] The defence concedes the high range of sentencing for trafficking but argues that these ranges are not immutable. Mr. Kirichenko points to cases such as R. v. McGill, 2016 ONCJ 138, where an aboriginal offender was given a suspended sentence and 30 months probation after pleading guilty to a single count of trafficking cocaine and being found with 139 grammes of powdered cocaine and 167 grammes of crack cocaine. In R. v. Earle, (9 December 2016) St Catherine’s, unreported (Ont. Sup. Ct.), the offender, also of aboriginal status, pleaded guilty to conspiracy to traffic cocaine, possession of cocaine for the purpose of trafficking, and other related offences. He received a 90 day intermittent sentence in addition to the 21 months pre-sentence custody he had served. Finally, in R. v. Lenhardt, 2017 ONSC 1290, the offender received a conditional sentence of 12 months after being convicted of possession of trafficking cocaine, possession of marihuana for the purpose of trafficking, and possession of proceeds of crime.

[32] It is trite that in sentencing an offender, each case stands and falls on its own facts. There are several distinguishing features from the cases cited. For example, in Lenhardt and McGill, the amount of drugs involved were a fraction of what Mr. Stevenson had in his possession. In Earle, the offender was part of a multi-person conspiracy involving one kilogramme of cocaine, only part of which belonged to him. It should be remembered that the judge found that a 4 year sentence was appropriate in those circumstances. However, the sentence was dramatically reduced by the award of pre-sentence custody credit over and above the statutory amount because of the serious injuries sustained by the offender whilst in custody. Moreover, the judge reduced the sentence by a further six months credit for the harsh bail conditions that the offender suffered whilst on remand.

[33] For the above reasons, I am not prepared to accede to the defence position of a conditional sentence. In my view, the offence that Mr. Stevenson was found guilty of is so serious that a sentence of imprisonment in excess of 2 years is warranted.

Parity with Steven Graham

[34] Ms. Osadet also asks me to take into account the sentence awarded to Steven Graham, Mr. Stevenson’s former co-accused.

[35] Mr. Graham pleaded guilty to the same offences with which Mr. Stevenson is charged. The Crown and defence presented a joint submission to Goldstein J. for a four year sentence substantially reduced through pre-sentence custody credit to an amount of 24 months because of Mr. Graham’s one year stay in custody whilst awaiting trial and a strict regime of bail conditons when released.

[36] In light of this sentence, Mr. Kirichenko asks this court to consider a lesser sentence based on Mr. Stevenson’s lesser culpability in the offence.

[37] I make a number of observations about the parity argument. First, I reject Mr. Kirichenko’s contention that Mr. Stevenson played a far less significant role in the trafficking of drugs on 16 April 2012. My judgment on conviction reflects the finding that Mr. Stevenson was an equal partner and participant in a criminal venture planned and controlled by both men. Secondly, the principle of parity only goes so far: Mr. Graham pleaded guilty and must be taken to have shown remorse for his actions. This acceptance of guilt would have entitled Mr. Graham to a significant discount in the sentence to be imposed and is an obvious factor in the joint position advanced by the Crown and defence.

[38] Nor is it uncommon for parties convicted of the same offence to be treated differently at the sentencing stage. In McIntyre, for example, the court, whilst recognizing the need for parity, reduced the offender’s sentence to 5 years - a term that still exceeded his co-accused’s length of sentence.

Sentence

[39] Sentencing is not a comparative exercise where an offender’s sentence is determined simply by reference to other cases. Whilst a sentencing judge must be cognisant of the ranges set by appellate courts, the sentencing process is designed to be an individualised procedure where the punitive measure is crafted to ensure the sentencing goals in the Criminal Code are met.

[40] What is the appropriate sentence for Mr. Stevenson? As noted, I take the view that this is not a case where a conditional sentence would be appropriate. Cocaine and other hard drugs are the scourge of the community. Their impact seeps into several layers of society from the addicted user to parents, spouses, children, and romantic partners who are forced to watch as the insidious and destructive effects of the drugs take hold. Nor are an addict’s immediate circle the only affected parties: addicts who are unable to afford the purchase price of the drugs commit criminal acts against other members of society in order to obtain money to feed their addiction. Robberies, break and enters, and assaults are the common by-product of impoverished addicts seeking to finance their substance enslavement.

[41] In my view, trafficking hard drugs is an evil that requires both deterrence and denunciation. I am mindful of Lebel J.’s statement in Ipeelee, at para. 83, that “unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.” I accept Ms. Otter’s submissions that, in a case involving a non-aboriginal offender, a sentence of 8 years would be fit. Ms. Otter agrees that some reduction should be given under the Gladue principles but suggests that the maximum reduction should only be 1 year.

[42] The Gladue report, which was of great assistance in this case, reveals a much more troubled side to Mr. Stevenson’s past than the ordinary case. The complete lack of any parental relationship, the exploitation by his father, the sexual abuse suffered whilst in custody, and the brutal faithlessness displayed by his brother and the mother of his child in taking away his son are significant factors impacting sentence. Mr. Stevenson’s attempts to reverse his fortunes when released on bail, as eloquently described by Ms. Masotti, speak to the prospects of rehabilitation.

[43] At the same time, I cannot ignore the fact that Mr. Stevenson was jointly involved in an enterprise to distribute a very large amount of cocaine for profit and sought to assist Mr. Graham in disposing of the drugs when he was being followed by the police. In an ordinary case of this nature, the disparity of sentence between an aboriginal and non-aboriginal offender would be minimal. Mr. Stevenson’s background, however, warrants recognition in the sentencing process. Balancing all of the Gladue factors, the seriousness of the offence, and the parity principle, I am of the view that the appropriate sentence in this case is 5 years imprisonment.

Pre-Sentence Credit

[44] Turning to the question of applicable credit, both parties agree that any time spent in custody on this offence was used up when Mr. Stevenson was sentenced for failing to comply with the conditions of his recognisance. The defence, however, submit that Mr. Stevenson’s conditions of release were of such a harsh nature that some time should be credited as compensation.

[45] The awarding of pre-sentence custody credit for harsh release conditions is discretionary and is not the product of a pre-applied formula: R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), at para. 37; R. v. Pomanti, 2017 ONCA 48, at para. 34. Similarly, it has also been recognised that even though the reality of stringent bail conditions is a potential mitigating factor, bail is not jail and a reduction in sentence does not always follow: R. v. Lindsay, 2009 ONCA 532, at para. 45; R. v. Ijam, 2007 ONCA 597, at para. 36.

[46] Mr. Stevenson was obliged to wear an ankle bracelet for approximately 12 months of his release following which he was subject to house arrest conditions for a further 12 months. In recognition of these conditions, I am prepared to award 8 months pre-sentence credit and reduce the time to be spent in incarceration accordingly.

Conclusion

[47] Mr. Stevenson is sentenced to 5 years imprisonment for the offence of possession of cocaine for the purpose of trafficking. Applying pre-sentence credit of 8 months, the remnant to be served is 4 years 4 months.

[48] There will be a DNA order made under the secondary ground and an order made pursuant to s. 109 of the Criminal Code that Mr. Stevenson cannot have in his possession any weapons for a period of 10 years.

S.A.Q. Akhtar J. Released: 21 July 2017